Citation Nr: 1502060
Decision Date: 01/15/15 Archive Date: 01/27/15
DOCKET NO. 12-14 998 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Entitlement to service connection for left ear hearing loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for a lumbar spine condition, to include as secondary to the service-connected right knee disability.
4. Entitlement to service connection for a cervical spine condition, to include as secondary to the service-connected left shoulder disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. L. Wallin, Counsel
INTRODUCTION
The Veteran served on active duty from September 1985 to March 1989, from November 2001 to October 2002, and from December 2003 to December 2004.
This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from January 2010 and September 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The RO, in pertinent part, denied the benefits sought on appeal, which have been recharacterized as they appear on the cover page of the instant decision.
In January 2010, the RO additionally denied a claim for right ear hearing loss. The Veteran appealed the decision and a statement of the case (SOC) was issued in April 2012. In his June 2012, substantive appeal, the Veteran withdrew his claim for right ear hearing loss; consequently, the matter is no longer in appellate status.
The claims for lumbar and cervical spine disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Tinnitus is due to the Veteran's period of active military service.
2. Left ear hearing loss is due to the Veteran's period of active military service.
CONCLUSIONS OF LAW
1. By extending the benefit of the doubt to the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2014).
2. By extending the benefit of the doubt to the Veteran, the criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.385 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Notice and Assistance
Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the Veteran's claims. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
In this decision, the Board grants entitlement to service connection for tinnitus and left ear hearing loss, which represents a complete grant of the benefits sought on appeal. Thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R.
§ 3.159.
II. Analysis
The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury and not due to the natural progress of the disease, will also be service-connected. 38 C.F.R. § 3.310.
Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).
For some 'chronic diseases,' such as other organic diseases of the nervous system, to include sensorineural hearing loss, presumptive service connection is available.
38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The provisions of § 3.385, however, do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Although that regulation speaks in terms of service connection, it operates to establish when a measured hearing loss is (or, more accurately is not) a "disability" for which compensation may be paid, provided that other requirements for service connection are otherwise met under 38 U.S.C.A. §§ 1110 , 1112 and 38 C.F.R. §§ 3.303, 3.307. Hensley v. Brown, 5 Vet .App. 155 (1993).
The Veteran seeks service connection for tinnitus and left ear hearing loss, which he contends is the result of noise exposure while performing duties as an aircraft mechanic and helicopter repairman. Specifically, he asserts acoustic trauma was from exposure to loud engine noise along the flight line. In his September 2009 claim, the Veteran indicated that tinnitus began in 1986 (during his first period of active duty service) and that he has had hearing loss since his discharge from service in 2004.
Considering the evidence of record, summarized in pertinent part below, and in light of the applicable laws and regulations, the Board shall afford the Veteran all reasonable doubt and the claims shall be granted. 38 C.F.R. § 3.102.
Service personnel records confirm the Veteran's military occupational specialty was as a helicopter repairman and an aircraft maintenance specialist. Noise exposure is consistent with the circumstances of the Veteran's service. A July 2010 report of medical history notes complaints of slight hearing loss over time. The corresponding audiogram shows puretone thresholds of 45decibels at 4000 Hertz. Audiogram during service showed a steady decline in puretone thresholds in the left ear at 4000 Hertz as follows: 20 decibels in August 1985; 30 decibels in May 1997; 25 decibels in May 2000; 30 in August 2002; 35 decibels in December 2005; and 40 decibels in January 2010. Thus, the Board finds the Veteran competent and credible regarding his allegations that tinnitus and left ear hearing loss began after exposure to loud noises while in service.
VA examination reports confirm a diagnosis of tinnitus and left ear hearing loss (speech discrimination using Maryland CNC Test was 88 percent) will therefore suffice as evidence of a nexus between the current tinnitus and left ear hearing loss that which first manifested during service.
The Board is cognizant that the November 2009 VA examiner stated that tinnitus was not caused by or a result of military noise exposure because the Veteran could not provide a specific date or circumstance of onset and in a June 2010 VA addendum opined left ear hearing loss was not related to service as there was no "significant change" in thresholds during active service. However, in the Veteran's claim he indicated his tinnitus began in 1986. He informed the examiner that there was a steady decline in hearing since 2001 and steady ringing in his ears when it was quiet. The Board finds that the probative value of the VA opinion diminishes in light of the cumulative evidence of record (the Veteran's competent lay statements as to manifestations of tinnitus and hearing loss, service personnel records confirming his duties and exposure to noise, and audiograms showing declining hearing thresholds in the left ear at 4000 Hertz). See Hayes v. Brown,
5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the credibility and weight to the attached medical opinions are within the province of the Board). Moreover, though the examiner reasoned that tinnitus and hearing loss did not manifest in service as a basis of the denial, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
After considering all the evidence of record, including the Veteran's credible statements, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for tinnitus and left ear hearing loss will therefore be granted.
ORDER
Entitlement to service connection for tinnitus is granted.
Entitlement to service connection for left ear hearing loss is granted.
REMAND
Further development is necessary prior to a merits analysis of the remainder of the Veteran's claims.
The record compiled for appellate review is incomplete. The Veteran's service personnel records listing the dates of active duty training and inactive duty training in the Army National Guard have not been associated with the appellate record. An attempt must be made to obtain these records upon Remand. 38 C.F.R. § 3.159(c)(2).
The Veteran claims that his cervical spine disability is secondary to his service-connected left shoulder disability. He claims that his lumbar spine disability is the result of an altered gait due to his service connected right knee disability.
The Veteran was afforded VA lumbar spine examinations in 2009 and 2010. The examiner failed on both occasions to address secondary causation. The Veteran was afforded a VA examination for his cervical spine in September 2010. The examiner indicated that the cervical spine condition was not caused by the left shoulder condition; however, the examiner failed to address whether the cervical spine condition was aggravated by his left shoulder disability. The examinations are inadequate and addendum opinions must be sought to determine the etiology of the claimed conditions. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The examiner is asked to address the specific questions set forth in the numbered paragraphs below.
Any ongoing VA treatment records pertinent to the issues must be obtained upon Remand. 38 C.F.R. § 3.159(c)(2).
The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. 38 U.S.C.A. § 5103A (b) (West 2002).
Accordingly, the case is REMANDED for the following action:
1. Obtain copies of any ongoing VA clinical records not on file pertaining to treatment of the claimed conditions. All records and/or responses received should be associated with the claims file.
2. Obtain service personnel records of the Veteran, which specifically include the dates of active duty training and inactive duty training he served in the Army National Guard. All records and/or responses received should be associated with the claims file.
3. After completion of the foregoing, the RO should obtain an addendum opinion from the examiner who rendered the September 2010 and May 2012 VA opinions, if available. Otherwise, the opinion must be sought from a similarly qualified provider
Cervical Spine: the examiner should state whether it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed cervical spine disability is proximately due to, the result of, or aggravated by the service-connected left shoulder disability beyond the natural progression of the disease. In answering this question, the examiner must address the Veteran's contentions that his cervical spine disability is the result of reduced ability to lift and limited mobility in the arm, which increased the amount of strain placed on the trapezius, which in turn increased the amount of strain placed on his cervical spine. See VA Form 9 filed in June 2012.
Lumbar Spine: the examiner should state whether it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed lumbar spine disability is proximately due to, the result of, or aggravated by the service-connected right knee disability beyond the natural progression of the disease. In answering this question, the examiner must address the Veteran's contentions that his lumbar spine disability is the result of over compensation for load carrying capacity due to his service-connected right knee disability. See VA Form 9 filed in June 2012.
Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed conditions.
4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issues in light of all evidence of record. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs